4 Constitutional Limitations on the Admissibility of Confessions in Criminal Proceedings
4.1 Fifth and Fourteenth Amendment Limits on Admissibility of Confessions
Confessions in the United States were originally regulated exclusively by common law. Under the common law, two principles prohibited the admission of coerced confessions. The“nemo tenetur”principle prohibited the use of torture and coercion by government agents to force individuals to incriminate themselves.96 The vol-untariness doctrine prohibited the use of involuntary confessions because such confessions were presumed to be unreliable.97
In 1897, the Supreme Court for the first time relied on the Constitution to exclude a statement in Bram v. United States. It held that the common-law rule banning the admission of involuntary confessions was “embedded in the Fifth Amendment”Privilege against Self-Incrimination and that the privilege thus pre-cluded the admission of compelled statements.98 This new constitutional rule applied only in federal court, however, as the Supreme Court had not yet applied the Fifth Amendment to the states.99 As a result, for a long time, the Fifth
91Ibid. at 21.
92Ibid. at 32.
93Ibid.
94Ibid. at 35.
95See abovePart 3.4.2.
96Tomkovicz,2011at 64; Godsey,2005at 479–80.
97Hoptv. Utah, 110 US 574 (1884); Tomkovicz,2011at 64; Godsey,2005at 482.
98Bramv. United States, 168 US 532, 548 (1897).
99Twiningv. New Jersey, 211 US 78 (1908). The Fifth Amendment wasfirst applied to the states inMalloyv. Hogan, 378 US 1 (1964).
Amendment rule did not have a broad impact, as the vast majority of criminal cases were brought at the state level.
Thefirst time that the Supreme Court held that a confession obtained by state officials was unconstitutional was in 1936, in Brown v. Mississippi.100The use of physical violence to extract confessions was“widespread throughout the country”at the time.101In Brown, the confessions were obtained through particularly heinous and brutal acts—repeated mock lynching, beatings, and other degrading treatment.
The Court held that the methods used to obtain confessions were“revolting to the sense of justice.”102Accordingly, using the coerced confessions as evidence at trial was“a clear denial of due process”and a violation of the Constitution.103
In the following three decades, the Court continued to rely on the Due Process Clause to evaluate the admissibility of confessions obtained through coercive methods. In 1964, the Court explained that the Fifth Amendment Privilege against Self-Incrimination likewise prohibited coerced confessions and that the standards for evaluating extrajudicial confessions under the Due Process Clause and the privilege were identical.104In deciding whether a confession is coerced under these provisions, the Court applies a totality of circumstances test to determine whether the confession was voluntarily given. The Court examines the personal character-istics of the accused (education level, age, mental state, etc.),105as well as physical or psychological coercion applied by the authorities.106Physical coercion includes violence as well as food or sleep deprivation,107 while psychological pressure includes threats, humiliation, isolation, trickery, and prolonged interrogation.108 The critical question is whether official pressure has overborne the will of the suspect, preventing him from making a rational decision whether to confess.
In the early cases suppressing involuntary confessions, the Court emphasized the need to condemn the coercion at issue and the concern that coerced confession are unreliable. It further held that the admission of coerced confessions violated the U.S.
criminal justice system’s commitment to“fair state-individual balance [that requires]
the government to leave the individual alone…[and] to shoulder the entire load.”109
100297 US 278 (1936).
101National Comm’n on Law Observance and Enforcement, ‘Report on Lawlessness in Law-Enforcement’1931, 3,cited inMiller/Wright,2007at 518.
102Brownv.Mississippi, 297 US 278, 286 (1936).
103Ibid.
104Murphyv. Waterfront Comm’n of New York Harbor, 378 US 52, 79–80 (1964).
105E.g.,Paynev. Arkansas, 356 US 560, 567 (1958);Culombev. Connecticut, 367 US 568, 620 (1961).
106E.g.,Paynev. Arkansas, 356 US 560, 567 (1958);Ashcraftv. Tennessee, 322 US 143, 153–54 (1944);Spanov. New York,360 US 315, 323 (1959).
107E.g.,Payne v. Arkansas, 356 US 560, 567 (1958);Ashcraftv. Tennessee, 322 US 143, 167 (1944).
108E.g.,Spanov. New York, 360 US 315, 322–23 (1959);Arizonav. Fulminante, 499 US 279, 288 (1991).
109Murphyv. Waterfront Comm’n of New York Harbor, 378 US 52, 55 (1964).
Over time, disapproval of offensive police tactics, rather than reliability, became the dominant reason for excluding coerced confessions.110In 1959, the Court stated that“[t]he abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law.”111By 1986, the Court held that the existence of police coercion is a prerequisite for a finding that a confession is constitutionally invalid.112Thus a confession cannot be considered coerced in violation of the Due Process Clause or the privilege where a suspect faces absolutely no government influence and responds to his own “command hallucinations.”113 Likewise, coercion by a private party does not violate the Constitution: “If a relative of a crime victim were to torture a person until he admitted his guilt, neither constitutional guarantee would bar that confession [although an evidentiary rule focused on reliability might].”Suppression under the Fifth and Fourteenth Amendment is therefore justified primarily as necessary to condemn and deter future police conduct. Concerns about the reliability of the evidence are resolved by state evidentiary rules, not through constitutional interpretation.114
By 1967, physical brutality had largely vanished from interrogation rooms. This was in part the result of judicial scrutiny of confessions, in part a product of the increasing professionalization of police, and in part a response to broad public outrage at revelations of third-degree tactics.115Yet while physical violence during interrogations was a rare occurrence by the late 1960s, the police applied other types of pressure to extract confessions: denial of food or sleep, protracted inter-rogations, isolation, and various psychological ploys, including trickery.116
Some commentators have criticized the voluntariness test for failing to address adequately these more subtle, yet nonetheless coercive tactics. Part of the difficulty is that judges have to resolve, without a reliable record, competing claims of what
110Kamisar,1995at 939.
111Spanov. New York,360 US 315, 320 (1959).
112Coloradov.Connelly, 479 US 157, 167 (1986).
113Ibid.at 161, 167.
114Ibid. at 159.
115Miller/Wright,2007at 521–22; Cassell,1996at 474–75.
116Mirandav. Arizona, 384 US 436, 447, 448 (1966). Interviews with two Texas defense attorneys and two prosecutors suggest that although physical coercion is a thing of the past, psychological tactics—especially lying to suspects about the evidence in the case—continue to be commonly used. As the defense attorneys interviewed suggested, such tactics, particularly when used with vulnerable (e.g., young or cognitively impaired) suspects, can result in false confessions. Interview with Texas Prosecutor #1, by Jenia I. Turner, July 20, 2016, Dallas, Texas; Interview with Texas Prosecutor #2, by Jenia I. Turner, July 27, 2016, Dallas, Texas; Interview with Texas Defense Attorney #1, by Jenia I. Turner, August 8, 2016, Dallas, Texas; Interview with Texas Defense Attorney #2, by Jenia I. Turner, September 20, 2016, Dallas, Texas.
transpired in the interrogation room. Although the state bears the burden of proof to show admissibility, in practice, courts frequently credit police accounts of the interrogation over inconsistent accounts by the defendant.117In addition, the vol-untariness test has been criticized as too malleable and unpredictable, as it relies on many different factors to determine whether a confession was involuntary.118
While courts and commentators have debated the voluntariness test and its effectiveness, the exclusion of statements found to be involuntary has not been contested. Courts have maintained a robust exclusionary rule, which applies to the coerced confession and to evidence derived from it. Coerced statements cannot be used by the prosecution for any purpose at trial—not even to impeach the defen-dant’s credibility. Nor can coerced statements be admitted under a good-faith or public safety exception.119This means that even a“ticking bomb”scenario, under which a government agent coerces a suspect to obtain evidence that he believes would save many lives, would not permit the subsequent admission of statements coerced from a suspect.
Fruits of a coerced confession are also generally excluded, under the theory that such exclusion is necessary to deter police misconduct more effectively.120 But there are some limits on the fruits doctrine with respect to coerced statements. The prosecution may be able to introduce evidence derived from coerced confession if the government can show that it obtained the same evidence through an indepen-dent source, or that it would have inevitably obtained it from an indepenindepen-dent source.121Additionally, the prosecution may be able to introduce fruits of the initial involuntary statement if it can show that the taint of the initial violation was attenuated.122In other words, as time passes and circumstances change, the effect of the initial coercion may dissipate to the point that a subsequent statement or other evidence can no longer be considered to be tainted by the coercion.123
Finally, if the prosecution can show that the coerced confession is reliable, it may be able to introduce the confession itself in evidence against a third party who
117See,e.g., Pepson/Sharifi,2010at 1228–29.
118See,e.g., Saltzburg/Capra,2014at 717–18.
119Minceyv. Arizona, 437 US 385, 397–98 (1978);New Yorkv. Quarles, 467 US 649, 654 (1984) (clarifying that“we have before us no claim that respondent’s statements were actually compelled by police conduct which overcame his will to resist”).
120Cammack,2013at 23.
121See,e.g.,Kastigarv. United States, 406 US 441, 460 (1972);Nixv.Williams, 467 US 431 (1984).
122See,e.g., Broun,2013§159 at 875;Oregonv. Elstad, 470 US 298, 310 (1985).
123Tomkovicz,2011at 89.
was not subject to coercion.124Both the Due Process and Fifth Amendment priv-ilege are considered personal rights, so a third party would not have“standing”to challenge the coercion of another person.125